Calcutta high court: Amendment of written statement in commercial suit continues to be governed by order VI rule 17 CPC, permissible at any stage before commencement of trial

Calcutta High Court Rules on Amendment of Written Statements in Commercial Suits: Permitted Anytime Before Trial Under Order VI Rule 17 CPC.

Case Title: Dredging and Desiltation Company Pvt. Ltd. v. Mackintosh Burn and Northern Express Consortium and Ors.

The Calcutta High Court has held that amendment of a written statement in a commercial suit continues to be governed by the unamended provisions of Order VI Rule 17 of the Code of Civil Procedure, 1908, and may be allowed at any stage of the proceedings so long as the trial has not commenced.

Justice Aniruddha Roy was considering an application filed by defendant nos. 1 and 2 seeking leave to amend their written statement in a commercial suit in which trial had not yet commenced. The plaint in the suit had earlier been amended by an order dated January 7, 2020.

Counsel for the applicants/defendants submitted that the proposed amendments would not alter the nature and character of the written statement already on record, and that the amendments were confined to the original plaint, since the writ of summons in respect of the amended plaint had not yet been served on the applicants. It was submitted that if allowed, the amended written statement would also suffice for the amended plaint. Reliance was placed on the Supreme Court's decision in Baldev Singh and Others v. Manohar Singh and Another, (2006) 6 SCC 498, for the proposition that courts must take a liberal approach while considering amendment of a written statement, including allowing inconsistent pleas.

Counsel for the plaintiff opposed the application, submitting that a written statement under Order VI Rule 2 of the Code can only state material facts and not evidence, and that the proposed amendments sought to introduce evidence. It was further argued that provisions of the Code amended pursuant to the Commercial Courts Act, 2015, including those relating to written statements and service of summons, reflected a stricter regime, and that the power to amend under Order VI Rule 17 should be read consistently with this stricter framework, particularly since Order VI Rule 17 itself had not been amended by the Commercial Courts Act.

The Court held that filing of a written statement in a commercial suit is governed by Order VIII Rule 1 of the Code as amended pursuant to the Commercial Courts Act, but amendment of pleadings continues to be governed by Order VI Rule 17, which remains unamended. It observed that the only restriction under this provision is that amendment cannot be permitted once trial has commenced, and that there is no restriction on the number of amendments a party may seek.

Referring to Baldev Singh, the Court reiterated that the tests applicable to amendment of a plaint are more rigorous than those applicable to amendment of a written statement, since a plaint constitutes the foundation of the suit and a defendant is only entitled to respond once the plaint is on record. The Court also noted the exception that an admission made by a defendant in a written statement cannot be withdrawn by way of amendment.

Finding that the trial in the suit had not yet commenced, the Court allowed the amendments sought by the applicants in the proposed amended written statement. The Court clarified that it had not expressed any opinion on the merits of the rival contentions of the parties or on the defence raised by the applicants, and that these would abide by the outcome of the trial.

The Court further granted leave to the plaintiff to lodge the writ of summons in respect of the amended plaint within four weeks, directing the concerned department to take steps for its service immediately thereafter. The amendments to the written statement were directed to be carried out within six weeks, upon compliance with formalities including re-verification and reaffirmation of the written statement. The application was allowed, without any order as to costs.